To paraphrase LBJ in 1968 — or Union Army general William Tecumseh Sherman long before that — Solomon Pena’s campaign slogan could well be: “If elected, I may not serve.”
Pena is the Republican nominee for state House District 14, which represents Bernalillo County’s South Valley. Problem is, he has felony convictions for his part in a smash-and-grab burglary crew that used stolen vehicles to drive into big-box retailers and steal large amounts of high-end electronics. And New Mexico law says that even though serving his sentence means he can again vote and serve on a jury, as a convicted felon he needs a gubernatorial pardon to be able to hold elected public office.
Pena, 39, served nearly seven years in prison after being convicted in 2008 of felony larceny and burglary. He completed five years of probation in March 2021. He’s paid his debt to society, deserves a chance to turn his life around and certainly would bring a fresh perspective on crime and punishment to the Roundhouse — but can he legally hold elected public office?
The Secretary of State’s Office says no. “A person with a felony conviction can qualify to run for office and be placed on the ballot, but they would not be able to hold that office, if elected, unless they received a pardon from the governor,” explained spokesman Alex Curtas.
The Governor’s Office says Pena hasn’t applied for a pardon.
Pena won’t comment. He declined to answer Journal questions about his criminal record this week, saying he was too busy knocking on district residents’ doors to talk. “I stand with Donald J. Trump,” he said in a subsequent text message. “I don’t want anything to do with you.”
Meanwhile, the U.S. District Court-District of New Mexico has raised questions about the state law. It says in a January ruling the get-a-pardon requirement likely wouldn’t stand up in the state Supreme Court, pointing out the New Mexico Constitution allows all legal residents who are qualified electors (18 and a legal citizen of the state) to hold public office. It also notes that is contradicted by two state laws that require convicted felons to obtain a pardon from the governor first.
So, Pena conceivably could win the November general election, but not be allowed to be sworn into office.
House District 14 Democratic incumbent Rep. Miguel P. Garcia is taking no chances. Garcia, who hasn’t had a general election opponent since 2014 in the heavily Democratic district, has hired attorney and state Sen. Jacob Candelaria to represent him in a court challenge aimed at having Pena disqualified from the Nov. 8 general election ballot. “We’re going to bring a case and let the court figure it out,” Candelaria said, adding he’s likely to file the court petition against Pena this week.
The partisanship of the case aside (a Democrat hiring an independent and former Democrat to disqualify a Republican in a heavily Democratic-district), voters need the state Supreme Court to inject some clarity, and soon. It’s ridiculous to have someone run for office up to the point of voters casting ballots for him and then not being allowed to hold it.
Either way, a permanent fix is needed to end the conflict between the state law and the Constitution. That could entail either state lawmakers rewriting state law to strike the gubernatorial pardon language from those two pieces of legislation or proposing a constitutional amendment to redefine qualifications for holding public office so they don’t contradict the legislation.
Meanwhile, Republican-leaning voters in the South Valley — and, yes, there are hundreds of them based on previous elections — face potential disenfranchisement if they vote for a candidate who’s later determined ineligible.
Early voting for the general election starts Oct. 11. Voters in House District 14 deserve an expedited decision before then. New Mexico does not need candidates on the ballot who cannot serve if chosen by the voters.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.